Union right of entry

Harmonisation changes

New harmonised work health and safety (WHS) laws providing for the right of a union official to enter a workplace now apply in the Commonwealth and in all Australian states and territories except Victoria and Western Australia. (In Victoria, union right of entry is provided for in its pre-WHS legislation.)

The effect of harmonisation on unions’ rights to enter (in comparison with their rights under the previous legislation) varies from one jurisdiction to another.
  • NSW and ACT: union right of entry has been broadened to include entry for the purpose of advising and assisting on WHS (with 24 hours’ notice to inspect employee records or other documents, or to consult and advise workers).
  • Queensland and Northern Territory: union right of entry has been broadened.
  • South Australia, Tasmania and Commonwealth: unions have the right of entry to a workplace to advise and assist on workplace health and safety (with 24 hours’ notice), or if they suspect a breach of WHS laws (with no notice). The union member must have a WHS entry permit and can also enter the workplace to assist health and safety representatives or to resolve issues as part of the issue resolution procedure.
  • Western Australia: the right of entry by WHS entry permit holders has been omitted from the draft WHS Bill 2014 which was introduced into the WA Parliament in October 2014, signalling that these provisions will not be included in WA’s WHS Act when it is passed.
  • Victoria: Health and safety laws have not been harmonised in Victoria, but under the Occupational Health and Safety Act 2004, union officials have the right to enter Victorian workplaces.
The following commentary refers to Part 7 — Workplace entry by WHS entry permit holders — of the model Work Health and Safety Act 2011

Giving notice

A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the WHS Act. The permit holder may consult with relevant workers, warn people of a serious or imminent health and safety risk, inspect relevant work systems, etc and inspect and copy documents relating to the suspected contravention that are held by the person conducting the business or undertaking (PCBU) at that workplace. The permit holder must give notice of their entry and details about the suspected contravention to the PCBU as soon as is reasonably practicable, unless to do so would defeat the purpose of entry.

If a WHS entry permit holder wishes to inspect or take copies of employee records or information held by a person other than the PCBU, the entry permit holder must give 24 hours’ notice to the PCBU and the person from whom documents or records are sought. 

A WHS entry permit holder is also required to give at least 24 hours’ notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers.

Eligibility for a WHS entry permit

A WHS entry permit can be issued to an official of a union, on application to the WHS regulator, if that official:
  • has satisfactorily completed prescribed WHS training, and
  • holds, or will hold, a Fair Work Act entry permit or the relevant state or territory industrial law entry permit.
For commentary on Fair Work Act 2009 entry permits, see below.

Fair Work Act

An official of an organisation (eg a trade union, employer association or enterprise association) that is federally registered by the Fair Work Commission (FWC) must have a valid and current entry permit from the FWC to enter a workplace for purposes related to their role under the Fair Work Act. A right of entry permit under the Fair Work Act is also required to enter workplaces under WHS laws.

Entry under the Fair Work Act can be for one of three reasons:
  • to investigate a suspected contravention of the Fair Work Act or an applicable fair work instrument 
  • to hold discussions with employees who are members of the union or eligible to be members, and
  • to exercise a right under WHS law.

Required notice to gain entry

An official must give at least 24 hours’ written notice of the intention to enter (unless entry is under a WHS law). The notice must be given to the occupier and any ‘affected employer’, and must state when the official proposes to enter.

Conduct on premises

Where a union is conducting discussions with employees, it can only hold discussions with employees whose industrial interests they are entitled to represent. While on site the official must comply with the employer’s WHS requirements.

Suspected breach of Fair Work Act/workplace instrument

Where a union is entering to investigate a breach, it can only inspect work and interview employees for the purposes of investigating the breach, and generally can only view records of employees who are members of the union. Inspection must be at the employer’s premises or some other agreed location.

Access to records or documents

The official must give a written notice to the affected employer to produce records or documents within five days and the notice must allow 14 days for the employer to produce the records or documents.

Holding discussions

A permit holder may enter premises for the purpose of holding discussions with one or more employees:
  • who perform work on the premises; and
  • whose industrial interests the permit holder’s organisation is entitled to represent, and
  • who wish to participate in those discussions.
Entry is confined to meal times or other breaks; entry may be refused during working hours.

[Last updated 25 May 2015]